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ARCHIVE FOR 2019    RUSSIAN

Ноябрь 2019

CONTENT

 

Chief editor’s column

 

 

Interview of the issue

 

 

The Event. Comments of the Experts

Valeriy Israylit’s Case: A Total Amnesty
Comments by I. Pastukhov, L. Golovko, G. Esakov, A. Gusev, V. Burkovskaya, A. Trufanov
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Topic of the issue

Yu.P. Orlovskiy Is There a Need for Labour Law Reform?
This article considers main additions and amendments to the Labour Code of the Russian Federation following its adoption, and analyses general aspects of labour legislation such as the notion of labour legislation, sources and principles of legal regulation of labour relations, legal institutions, remote workers and small business employees.
Keywords: Labour Code, basic principles, sources of labour law, employment contract, remote workers, small business
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A.M. Kurennoy Effective Representation of Employees’ Interests in the Field of Hired Labour
This article identifies certain issues the state, parties to labour relations and their representatives face today, which need to be resolved in order to ensure effective social policies. The author gives his view on the question of whether the employer should take into account the opinion of another trade union (a separate entity created as part of another organisation) his employee belongs to, in all matters requiring an opinion of the trade union’s elected body.
Keywords: social state, social partnership, labour legislation, representatives of workers, trade unions, employers and their representatives
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I.Ya. Belitskaya Remote Work in Russia: Looking for a Solution
This article considers certain aspects of Russian regulation of one of the types of atypical employment — remote labour, as well as factors hampering its wide dissemination and main difficulties encountered in concluding employment contracts for remote work. The analysis of possible improvements in Russian labour legislation takes into account, among other things, the European regulatory framework for telework. Electronic document circulation in labour relations, recording of working hours, compensation for used equipment and a number of others related to the performance of remote work by the employee are touched upon.
Keywords: employment contract, atypical form of employment, remote work, remote employees, place of work, electronic signature
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Ye.S. Batusova Fixed-Term Contract as a Form of Atypical Employment in the Eastern Europe
A fixed-term contract, being a form of atypical employment, due to the presence of an objective reason for its termination — a certain date or event — is attractive for employers. It allows the employer to reduce termination costs and to promptly respond to changes in the labour market. Russian employers tend to unreasonably overuse a fixed-term employment contract thereby violating employees’ rights. Russian labour law scholars point out shortcomings in the regulation of this type of contract and recognise the need for its reform. It is advisable to use the positive experience of respective regulatory practices from Eastern Europe (Bulgaria, Hungary, Poland, Romania, Slovakia, Czech Republic, Moldova, and Belarus) in order to formulate proposals for the Russian Federation. These countries have a common political and legal history with Russia within the framework of the Council for Mutual Economic Assistance, in the Soviet Union. They can be divided into two groups: EU countries and non-EU countries. The fixed-term employment contract regulatory mechanism, as established by Council Directive 1999/70/EC of June 28, 1999, is analysed. The Directive was the basis for general patterns and trends in the legal regulation of fixed-term employment contracts in Eastern European member countries. Some components of this mechanism are used quite successfully in the Republic of Moldova, although it is not part of the EU. Therefore, such legal experience is relevant to the countries of the Commonwealth of Independent States. The article offers recommendations on how to optimise the fixed-term employment contract regulation in Russia in order to ensure a balance of interests between employees, employers. These recommendations are based on labour legislation of the selected countries.
Keywords: fixed-term employment contract, atypical employment, fixed-term employment contract conditions
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O.I. Mitrofanova Some Issues for Professional Standards Application in the Digital Economy
This article deals with the scope of professional standards application. The author discusses the functionality of “occupational standard” for the purposes of the digital economy and analyses the functional suitability of professional standards, and examines the features and problems relating to their application in organisations, institutions and enterprises.
Keywords: occupational standards, employee qualification, skill level, salary, profession, job position, labour function
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D.V. Chernyaeva Telemedicine in Employment Relations
The paper analyses regulatory frameworks for telemedicine in employment relations in Russia and abroad in a comparative context. The author considers the topic from two viewpoints: firstly, as a service employer and employee use to simplify statutory procedures that relate to employee health, and secondly, as work duties healthcare professionals perform in the course of their employment relations bearing specific liabilities and sustaining specific consequences. In conclusion the author formulates recommendations for amendments to national legislation.
Keywords: telemedicine, telehealth, employment relations, employment law, labour law
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G.T. Malashenko Non-Compete Corporate Risk Management Pacts: Practices in Other Jurisdictions
This article examines the legality of non-compete pacts in Russian labour law and analyses different practices of applying such provisions along with similar restrictive covenants in other jurisdictions. The author concludes that this institution, in one form or another, is present in modern legal systems and, unlike its function in Russia, provides an effective mechanism for protecting the legitimate interests of right holders against competitors that can hire a leading specialist after dismissal. However, this instrument requires flexible regulation, and its adjustment is usually done through judicial interpretation based on the principle of reasonableness.
Keywords: non-compete agreement, restrictive covenants, principle of reasonableness, common law, equity law, jurisprudence constante
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T.Yu. Korshunova Some Issues Surrounding Regulation of Organisation Head’s Labour
This article is devoted to urgent problems of the regulation of organisation head’s labour and the relationship between labour and civil law. The author reveals the features of the legal status of the sole executive body of a legal entity from the perspective of both labour legislation and corporate standards. The author dwells on the problems of relations between a legal entity and its founder, analyses issues with the legal status of two or more sole bodies of a legal entity, addresses termination of employment contract at the request of the head of a legal entity, offers suggestions for improving the current legislation.
Keywords: head, sole executive body, legal entity, labour contract, labour freedom, remuneration of labour, conclusion and termination of employment contract
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S.L. Budylin Rough Judgment
The Moscow Case as a continuation of the Moscow protests (criminal cases against demonstrators, administrative sanctions, civil lawsuits against the organisers of the rallies) — Svetlana Prokopieva’s case — The Rostov case — Judicial reform — Reappointment of Chief Justice — Tax pledge status — Struggle for taxpayers — Execution by Russia of ECHR problematic judgment — UK Supreme Court Decision on the conflict between the Prime Minister and the Parliament — Another attempt to impeach the US President — Aeroflot lawyers’ case — Censorship (not only Internet) — Rough judgment
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Discussion Board

G.V. Tsepov Civil Principles of a CEO’s Activities
The issue of Civil and Labour Law correlation in regulation of the activities of a legal entity’s CEO remains unresolved both in theory and in law-enforcement. Conflicts are driven by the rudiments of the Soviet period theories — still existing in public legal consciousness — which proclaimed a legal entity a real subject, but in fact, turned it into a scholastic structure not working in practice. On the contrary, treating a legal entity as a tie point of rights and obligations, legal reality, while treating a CEO as its special representative — makes it possible to draw a clear distinction between civil and labour relations. The powers of a CEO are given and terminated by civil-law decisions of a legal entity. Due to fiduciary nature of relations, taking a decision to terminate the powers makes it impossible for a CEO to continue performing their functional responsibilities. Nevertheless, the termination decision in itself cannot exclude giving an ex-CEO social guarantees and compensations as specified by Law and labour contract.
Keywords: CEO, body, representative, powers
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Theory and practice

P.A. Skoblikov Highest Rank in Criminal Hierarchy: A Follow-Up to Conversation on Interpretation of Article 210.1 of the Criminal Code of the Russian Federation
In the context of the principles of criminal law, this article analyses the recent provisions that stipulate liability for being the highest in rank in the criminal hierarchy. The author compares different academic positions acknowledging either the possibility or inadmissibility of liability for criminal status, and concludes that the liability under Art. 210.1 of the Criminal Code is linked to the committal of certain socially dangerous actions, not the possession of criminal status. Criminal methods are disclosed. It is pointed out that the provisions in question demonstrate the peculiarities of modern criminal policy: its spontaneity, unpredictability and isolation from legal science. The forecast of law enforcement practice under Art. 210.1 is provided and substantiated.
Keywords: modern criminal policy, organised crime, highest rank in criminal hierarchy, organised group, criminal community, criminal organisation, criminal formation, criminal authority, socially dangerous action
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N.V. Filipenko, Ye.M. Kurochkina Individual Heating in Apartment Buildings in Russia and RF Constitutional Court Decision No. 46-P of 20 December 2018
This article addresses the problem of calculating heating costs in apartment buildings and analyses the possibility of switching heating from the centralised scheme to an individual one. It is demonstrated that current legislation formally does not prohibit such a change but practically makes it unfeasible. This was possible under the legislation in effect before 1 January 2011 in compliance with the requirements which are analysed in this article. The Russian Federation Constitutional Court Decision No. 46-P of 20 December 2018 provides that for any apartments switching to an individual heating scheme heating fees can not be levied as a total of heating costs and common services in the apartment building.
Keywords: utilities, individual heating, heating fee, heat supply, apartment building
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V.N. Babchenko, M.Yu. Kuznetsov Executive Rule-Making and Judicial Review in Russia: Practical Aspects
This article looks at the jurisprudence of the Russian Supreme Court and the Russian Intellectual Property Court in the matters involving challenges against federal executive regulations and clarifications of regulatory effect. The authors describe the main guiding criteria for courts to declare departmental regulations inoperative. They also dwell on the inadmissibility of the procedure established by Art. 217.1 of the Russian Federation Code of Administrative Procedure to challenge departmental clarifications formally meeting the criteria which are typical of departmental regulations.
Keywords: departmental regulations, federal executive regulations, declaring regulations inoperative, declaring legal provisions null and void, judicial review
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V.V. Kan Control of Mass Media in the Digital Economy
This article brings a discussion on the revision of the authorisation system for mass media. Based on a review of the recent legislative changes in the field of mass communication, it is suggested to adopt a unified notification register procedure for both traditional and new media. The proposed mechanism would appear to be a compromise between the state’s necessity to control the mass information and the request to abolish excessive administrative barriers in the digital economy.
Keywords: mass media, mass communication, regulation of media, regulatory guillotine
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